Vaughn Palmer: Cabinet confidentiality argument rings hollow

Vaughn Palmer, Vancouver Sun columnist02.25.2014

Teachers and their supporters rally on the lawn of the Vancouver Art Gallery in March 2012 during their dispute with the provincial government. The wrangling continues, this time in courtrooms, as the B.C. Liberals seek to shield their negotiating notes and briefings from public consumption.

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VICTORIA — For much of the past year, the B.C. Liberals have fought in court to preserve absolute secrecy over a trove of documents setting out their strategy for the last round of negotiations with the teachers union.

The documents, including briefing notes and other written material, were prepared for cabinet at the behest of Paul Straszak, the government’s chief negotiator in talks with the B.C. Teachers’ Federation in 2011 and 2012.

The union sought access to the material as part of its claim that the Liberals were bargaining in bad faith. The government opposed handing over the documents to the union in the name of cabinet secrecy.

“The province explains that all of the documents were documents submitted to cabinet or emanated from cabinet and as such there is a public interest in maintaining the confidentiality of them,” as B.C. Supreme Court Justice Susan Griffin noted in summarizing the government argument in a ruling last July.

“A common reason given for protecting cabinet documents from public production is the need to encourage candour amongst members of the executive branch when discussing important and often sensitive policy matters.”

But as the judge then went on to note, there was ample precedent for a court to require production of these kinds of documents in a case where the government’s conduct in public sector bargaining was at issue.

The damning contents of a similar trove of documents led the Supreme Court of Canada to find that the B.C. Liberals in their first year in office had trampled collective bargaining rights for health care workers by voiding parts of their contract.

Building on that 2007 decision by the country’s highest court, and again drawing on cabinet documents and briefing notes, Justice Griffin herself concluded in 2011 that the Liberals had wrongly voided clauses in the teachers’ contract in much the same way as they had done with health care workers.

Consequently, when the Liberals entered into talks with teachers to redress the effect of Griffin’s ruling, they must have been aware of the likelihood that written advice or briefing notes could be accessible in any subsequent court action.

The latter point was underscored by Griffin herself when the case did indeed end up in front of her for a second go-round, with the union again arguing for access and the government again arguing for secrecy.

“It has to be assumed that the province would have been advised that any measures taken by it that might have implications in its collective bargaining with the BCTF, including in addressing the implications of (her earlier court decision), could attract further litigation and court scrutiny, and therefore documents relating to the decision to take these measures might be ultimately producible,” she observed in rejecting the government’s argument.

“This is a factor that weakens any argument that the candour of discussions at the cabinet level will be adversely affected if people involved in those discussions knew that their documents might eventually be ordered produced.”

Nor did the Liberals persuade the judge that the documents actually revealed any aspect of the discussions at the cabinet table, where ministers are bound to respect their oath of confidentiality.

“I have seen none that indicate views expressed by individual members of cabinet in debating issues,” wrote Justice Griffin. “The documents at issue either were prepared for cabinet, or emanated from cabinet, and as such contain information that may have been presented to cabinet and therefore discussed at cabinet meetings, but this is something different than containing notes of who said what around the cabinet table.”

With that, she issued an order, similar to the earlier ones, granting the BCTF defence team access to the documents on a restricted basis to prepare and present its case in court.

The union put that access to good use — witness the judge’s Jan. 27 finding that accepted the government had bargained in bad faith and her order restoring the teachers contract to where it stood a dozen years ago.

That still left the question of the fate of the documents. The union wanted to provide teachers with its successful closing argument in the case, which contained a summary (though not the entire contents) of the documents. The government again resisted on the by-now familiar grounds of cabinet confidentiality and again lost the argument.

“The members of the BCTF have a direct interest in the litigation,” wrote Justice Griffin. “In order for the members of the BCTF to be informed critics of my conclusions reached in this case, especially in relation to the government’s central argument that it consulted in good faith with the BCTF, it is necessary for the BCTF members to have access to the un-redacted written submissions of their counsel.”

Her delayed order allowing the union to bring teachers into the loop is scheduled to take effect on Friday of this week. But the government was in court again Friday, seeking to extend the sealing order on the documents pending the outcome of its appeal against the entire Griffin decision.

All in the name of defending the principle of cabinet confidentiality, you understand. Not that the Liberals would ever admit to having anything to hide.

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